Posey v. Hamner
| Decision Date | 27 May 1946 |
| Docket Number | 37975. |
| Citation | 27 So.2d 158,210 La. 382 |
| Court | Louisiana Supreme Court |
| Parties | POSEY et al. v. HAMNER et al. |
Appeal from Second Judicial District Court, Parish of Bienville; H. W. Ayres, Judge.
Oglesby & Oglesby, of Winnfield, and Percy E. Brown, of Arcadia for plaintiffs-appellants.
Goff Goff & Caskey, of Arcadia, for defendants-appellees.
Plaintiffs in this action instituted against the sureties on a tutor's bond, are appealing from a judgment dismissing their suit, the district court having sustained defendants' plea of prematurity and an exception to the capacity of the representative of two of the claimants under the bond.
Following the death of Mrs. Ethel M. Posey, so the allegations of the petition disclose, her husband, D. H. Posey, was confirmed by the district court of Bienville Parish as the natural tutor of their several minor children. In qualifying, instead of causing to be recorded in the mortgage records of that parish an extract of the inventory of his deceased wife's estate, he furnished a bond in the sum of $3,000 with the Hartford Accident & Indemnity Company as surety.
On August 13 1926, the natural tutor filed his annual account, listing thereon property belonging to the minors of the value of $2,171.50. At the same time, pursuant to authorization obtained from the court, he substituted a legal mortgage (effected by the recordation of an extract of inventory) for the surety bond that he gave when qualifying.
Some months later, specifically on December 29, 1926, the tutor obtained a court order permitting him to sell at private sale, in order to effect a partition, the interests of the minors in both the personal and real property which he owned in indivision with them. The sale was consummated as authorized, one W. L. Hamner being the purchaser; but the minors' legal mortgage that encumbered the property was not then canceled.
On May 17, 1928, D. H. Posey, the tutor, presented a petition to the court praying for authority to furnish a personal bond in lieu of the minors' mortgage resulting from the recordation of the extract of inventory. The necessary order issued, the legal mortgage was canceled, and there was substituted for the latter a bond signed by W. L. Hamner (the purchaser of the property) and E. W. Merritt as sureties.
The father and tutor died on August 14, 1941, without having rendered any account other than the one of August 13, 1926; and about three years after such death this action was instituted against his sureties, W. L. Hammner and E. W. Merritt. Three of the plaintiff are obligees (now majors) under the bond, while two (minors appearing through a representative) are children of a deceased obligee. They pray for judgment against the defendants in solido in the sum of $2,171.50, with interest and attorneys fees.
Besides containing the allegations above enumerated, the petition (as amended) sets forth that D. H. Posey (the tutor and principal on the bond) died 'totally without property either real or personal.' It fails to allege attempts to obtain satisfaction of plaintiffs' claim through judicial proceedings conducted against the principal or his succession.
On this appeal it is not urged that the district court erred in sustaining defendants' exception to the capacity of the representative of the two minor plaintiffs. In fact, appellants' counsel now concede, as their brief discloses, that such ruling was correct.
The sole complaint offered here concerns the maintaining of defendants' plea that this action was prematurely brought, the court's decision having as its basis Revised Civil Code, Article 3066, which reads:
'A judicial surety can not demand the discussion of the property of the principal debtor.
'But no suit shall be instituted against any surety on any appeal bond, noron the bond of any administrator, tutor, curator, executor, or syndic, until the necessary steps have been taken to enforce payment against the principal.
'The mode of proceeding against sureties on official bonds, is prescribed by special laws.' (Italics ours.)
As before...
To continue reading
Request your trial